Age discrimination? Only if you want the job

The Metro recently reported that a 54 year old job applicant, living in Bristol has accused at least 60 companies of age discrimination after they posted job adverts seeking “school leavers” or “recent graduates”. He is reported as having received settlements of up to £3,500 each. Whilst employers should steer clear of using age specific language or references, a recent case may provide some comfort. The EAT in Keane v Investigo has said that a job applicant must genuinely want the jobs applied for before they can claim that they have suffered a detriment by not being called for interview, or offered the job.

Ms Keane, a 51 year old accountant, made around 21 online applications for jobs (via job agencies) for which she was over qualified. All the job adverts were clearly aimed at recently qualified accountants, involving responsibilities for someone of comparatively limited experience. As soon as it became clear that she was not being offered an interview and in other cases before she had heard anything, Ms Keane issued a statutory age questionnaire and then issued age discrimination claims.

Ms Keane was unsuccessful. The tribunal could not find any act that would constitute age discrimination as the employers were seeking specific skills which were unrelated to age. It also said that Ms Keane’s job applications were not genuine (a point her lawyers had conceded during the hearing) and she could not therefore argue that she had suffered a detriment.

The tribunal heard evidence that Ms Keane had issued 21 age discrimination claims, some of which were settled before the hearing. She had submitted identical CV’s and covering letters for each of these (which included typo’s and spelling errors) and the tribunal believed that this indicated that she was not really interested in any of the jobs applied for. In addition, she did not follow up any of the applications by telephone, and on one occasion where she was offered the chance to explore other opportunities, she declined. Ms Keane’s evidence did not adequately explain why she had applied for jobs she was significantly over qualified to do and the tribunal had been entitled to infer from this that she had no genuine interest in the posts, but was submitting applications simply to claim compensation.

The tribunal went on to make a costs order against her on the basis that the claims were an abuse of process or misconceived. Ms Keane appealed to the EAT. The Regulations do not state that a job applicant must be genuinely interested in accepting the job applied for. According to the EAT, this was “self evident” and it dismissed the appeal.

Tips for employers

This is a sensible judgment and will help employers defend claims from applicants who are not interested in the jobs applied for.

Employers presented with applications by over qualified candidates should consider asking additional questions to ascertain why they are applying for a job they are too experienced for. If claims are threatened, employers should be cautious about offering a nuisance payment if they do not believe that the candidate actually wants the job. The two cases here indicate that some unscrupulous applicants are using the age discrimination legislation as a “gravy train”.